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Background: The plaintiff, Sam McCormick, was diagnosed with lung disease on June 14, 2003. McCormick died on September 1, 2005.

On June 8, 2006, a complaint was filed against the Railroad by a representative for McCormick. The cause of action was pursuant to the FELA for asbestos exposure.

A motion was filed to substitute Ann McCormick, Mr. McCormick’s wife, as the party plaintiff on March 21, 2007.

Railroad filed a motion to dismiss, claiming that Mr. McCormick lacked the capacity to sue the Railroad, as only a living employee or the executor or administrator of a deceased employee’s estate may maintain an action under the FELA. The trial court denied Railroad’s motion to dismiss and allowed Ann McCormick to be substituted as the plaintiff.

Railroad filed a motion to reconsider, arguing that Ann McCormick failed to prove she was the executor of her late husband’s estate. The court allowed ten days to substitute the proper plaintiff. Ten days passed and no other plaintiff was produced, so the trial court entered an order of dismissal, dismissing Ann McCormick’s claim.

A motion to reconsider was filed, alleging that timely compliance with the court’s prior substitution order was improper. The court granted the motion and again substituted Ann McCormick as the plaintiff.

Railroad filed a request for appeal by permission, appealing the substitution of Ann McCormick. The trial court granted Railroad’s request for interlocutory appeal on April 22, 2008. On August 29, 2008, this Court granted Railroad’s Rule 9 Application for Interlocutory Appeal.

Issue: Whethe the trial court erred in allowing Ann McCormick to be substituted as the party plaintiff.

Held:Railroad argued that the trial court abused its discretion by allowing Ann McCormick to be substituted as the party plaintiff. Railroad contended that a deceased individual does not have the requisite capacity to sue. Thus, the claim should be dismissed.

Ann McCormick argued that substitution was proper, pursuant to Tennessee Rule of Civil Procedure 25.01(1), which discussed when a party to a suit dies, the suit does not end. Because Tennessee law provided that the cause of action of a deceased person does not abate, the case should not be dismissed.

The Court held that this suit was not filed against Railroad until after Mr. McCormick’s death. Numerous decisions from other jurisdictions cited by Railroad confirmed that because Mr. McCormick was deceased when the complaint was filed on his behalf, the suit was a nullity, and not amenable to substitution.

Under Tennessee law, the commencement of a suit in the name of a deceased individual amounts to a nullity, and the nullity may not be avoided through substitution of parties.

Comments:

Tennessee Rule of Civil Procedure 25.01(1) states: "If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties."

This case shows that the technicalities of a rule are extremely important. Here, the deceased must have already been a party to the lawsuit before he died. That means the suit was must have been filed in Court before he died. Unfortunately for Mr. McCormick, he passed away before this case was brought to court.

Ann McCormick would have been better served filing suit in her name, as the wife of Mr. McCormick.

Background: Plaintiff Audra Martin filed a complaint against defendant CSX alleging she was injured on December 13, 2003. Martin was a yardmaster at CSX’s rail yard in Willard, Ohio. Martin alleged that a battery used to power the yard’s power supply system began to leak and release fumes. As a result, Martin lost consciousness, fell, and sustained injuries.

CSX and Martin settled their disputes and filed an amended notice to dismiss Martin’s claims against CSX.

CSX filed a second third-party complaint against APCC and new party B & B, the manufacturer of the battery. Both third-parties argued that CSX was not entitled to contribution because there was no evidence that their potential liability to Martin was extinguished by the settlement agreement between CSX and Martin, as required by OCR § 2307.25(B). Also, they contended they are protected from CSX’s contribution claim under § 2307.25(B).

Issue: Whether the Court will grant or deny APCC and B & B's motions on the pleadings.

Held:The Court found no requirement that mandated that when a settlement is involved, a claimant must allege that the agreement extinguished the third-parties liability. Furthermore, this Court held that no requirement should be created.

§ 2307.25(B) prescribed that “a tortfeasor who enters into a settlement with a claimant is not entitled to contribution from another tortfeasor whose liability for injury is not extinguished by the settlement.”

Thus, following the above section, this Court denied APCC and B & B’s motion for judgment on the pleadings.

Comments:

Contribution is a claim brought by one or more defendants to a lawsuit for money damages brought by a plaintiff. A contribution claim states the party (usually a defendant) is entitled to “contribution” from a third party for any money damages awarded to the plaintiff.

Count I was brought against ICR pursuant to FELA; Count II was brought against TL for the conditions of its premises; and Count III was brought against Ameritrack for negligence in performing its work and maintaining its worksite.

ICR filed a motion for partial judgment on the pleadings. Specifically at issue was paragraph 8 of Count I, which alleged that ICR had violated Track Safety Standards. ICR argued that Harrison failed to mention that any railroad track that was part of the general railroad system of transportation was involved in his accident.

TL moved to dismiss Count II of Harrison’s complaint. TL contended that Harrison had not alleged that they were a common carrier by railroad or that Harrison was an employee of TL as required by the Federal Employers’ Liability Act (“FELA”). Thus, they stated that Harrison had failed to state a claim for which relief could be granted.

Ameritrack filed a motion to dismiss Harrison’s complaint for the same reason as TL.

Issue: Whether the Court will grant or deny ICR's motion for partial judgment on the pleadings; TL's motion to dismiss Count II; and Ameritrack's motion to dismiss Count II.

Held:ICR argued that the allegations in Paragraph 8 did not fall within the scope of the Track Safety Standards, because Harrison did not allege that any part of the railroad track was involved in the incident.

The Court granted ICR’s motion for partial judgment, as Harrison conceded that the accident did not occur on the railroad track.

Defendants TL and Ameritrack argued that Count II and III should be dismissed because Harrison had not stated a cause of action under FELA. Harrison accurately noted that Counts II and III comply with the Court’s pleading rules and both counts stated claims for negligence. Thus, the Court denied defendants’ motion to dismiss, as Harrison had stated a claim for which relief could be granted.

Comments:

A motion to dismiss is also known as a 12(b)(6) motion. The motion must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and what grounds the claim is made on.

The motion’s allegations must suggest that the plaintiff has a right to relief.

Plaintiff alleged that on June 22, 2004, he was injured when the locomotive he was operating stalled in a tunnel, forcing him to inhale carbon monoxide and diesel fumes. At the time of the incident he suffered, and continued to suffer, from obstructive sleep apnea and narcolepsy.

In Counts I and II of plaintiff’s complaint, he alleged that his respiratory system was injured when he was exposed to smoke, carbon monoxide, diesel exhaust, and diesel fuel fumes when his locomotive stopped in the tunnel. Plaintiff further alleged that his sleeping condition was aggravated by the incident.

In Count III, plaintiff alleged repetitive trauma injuries to his wrists, including tendonitis, incurred throughout the time he was employed by defendant. Counts I and III were brought under the Federal Employers’ Liability Act (“FELA”) and Count II was brought under the Locomotive Inspection Act.

Defendant denied liability for all three counts, and moved for summary judgment.

Issue: Whether the Court will grant summary judgment in favor of the defendant.

Held:Plaintiff was required to provide expert disclosures, along with written reports. The reports were submitted more than nine months after the deadline.

Plaintiff also failed to respond to defendant’s motion for summary judgment. Therefore, plaintiff was precluded from presenting any evidence – expert or otherwise- to prove causation in his case. Under the FELA and the Locomotive Inspection Act, the plaintiff must prove causation.

As the plaintiff submitted no evidence of causation in support of his claims, this Court found it appropriate to grant defendant’s motion for summary judgment.

Comments:

This case demonstrates the necessity for each party to submit the documents requested by either the Court or the other party on time. Here, the plaintiff failed to produce their reports on time. Thus, the Court precluded him from submitting any evidence to prove causation.

Background: Plaintiff William Campbell was hired by the defendant CSX Transportation, Inc. ("CSX") on April 10, 1977. Campbell's employment was terminated in August 2006.

Campbell testified at his deposition that his termination did not have anything to do with any physical problems he was having at that time. At the time of his termination, he did not have any work restrictions.

Campbell later testified that he injured his neck and lower back during his employment with CSX. He went to Dr. Schoedinger on October 30, 2006, and a year later underwent surgery on his lumbar spine.

Dr. Schoedinger testified that some portion of Campbell's condition was related to the repetitive stress imposed on his spine as a result of his work for CSX.

On November 2, 2007, Campbell filed a complaint against CSX in the Southern District of Illinois. In his one-count complaint, Campbell sought damages pursuant to the Federal Employers’ Liability Act (“FELA”). Campbell alleged that he suffered injuries to his back and neck while employed by CSX, and that CSX failed to provide him with a reasonably safe workplace, equipment, and sufficient help.

The case was transferred to this court on February 14, 2008. CSX filed a motion for summary judgment for lack of causation evidence.

Campbell's responses to CSX's motions were due April 13, 2009, and April 20, 2009. Campbell requested an extension of time on August 27, 2009. The Court denied the request.

Held:Rule 7.1(D)(2) of the Local Rules of the Central District of Illinois provided: Within 21 days after service of a motion for summary judgment, any party opposing the motion shall file a response. A failure to respond shall be deemed an admission of the motion.

CSX argued that Campbell proffered no evidence that his railroad work contributed to his alleged injuries. As there appeared to be no genuine issues of material fact on causation, CSX argued their motion for summary judgment should be granted.

This Court noted that Campbell, who sued under FELA, must prove the four parts of negligence: (1) foreseeability; (2) duty; (3) breach; and (4) causation.

The Court held that Campbell’s purported neck and back injuries were less than clear to a layman. Therefore, because Campbell failed to produce any evidence to support a necessary element of his FELA claim, summary judgment in favor of CSX was granted.

Comments:

A party’s failure to submit a timely response to a motion for summary judgment does not automatically result in summary judgment for the moving party. As seen in this case, the moving party has the burden of demonstrating that no genuine issue of material fact exists, and that he is entitled to summary judgment.

Summary judgment is appropriate if the pleadings, discovery, and affidavits show there are no genuine issues of material fact.

Campbell filed a FELA claim, which meant he had to prove the four elements discussed above. Critical to his claim was showing a causal connection between CSX’s negligence and his injury. Unless the connection is a kind that would be obvious to laymen, such as a broken leg from being hit by an automobile, there must be specific evidence to establish the causal connection.

Plaintiff moved in limine under Daubert and Federal Rule of Evidence 702 to exclude testimony of defendant Long Island Railroad Company’s experts. Those experts included psychologist Richard Vickers, and psychiatrist William Head.

Plaintiff sought to preclude Dr. Vickers and Dr. Head from testifying in reliance upon or referring to the Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”) which Dr. Vickers administered to the plaintiff.

The plaintiff argued that Dr. Vickers did not reliably interpret his MMPI-2 results, and therefore Dr. Head in turn should not be allowed to rely on Dr. Vickers’s report on the MMPI-2.

Issue: Whether the plaintiff's motion in limine to preclude testimony from Dr. Vickers and Dr. Head will be granted.

Held:The crux of the plaintiff’s objection against Dr. Vickers was that he failed to apply the principles and methods reliably to his case. He contended Dr. Vickers “cherry picked” which interpretation he wanted, and failed to consider alternative explanations.

Dr. Vickers argued that he considered and ruled out each of the plaintiff’s alternative interpretations of the MMPI-2 results, using his professional judgment and cited authorities in his field. Dr. Vickers’s opinions based on Mr. Shea’s MMPI-2 results were reliable and followed the approach other clinicians in his field have. Thus, the motion in limine to preclude Dr. Vickers’s testimony regarding the MMPI-2 is denied.

Comments:

An expert witness or professional witness is someone, who because of education, training, skill, or experience, is believed to have knowledge in a particular subject beyond that of the average person.

Experts charge a professional fee which is paid by the party commissioning the report. The fee must not be contingent on the outcome of the case. Expert witnesses must be subpoenaed, although it is merely a formality.

Streeter was employed by defendants as a conductor of two locomotives. A fire started in one of them, and Streeter ran to a nearby locomotive to retrieve a fire extinguisher. While exiting the locomotive with the fire extinguisher, his foot became entangled in the locomotive’s ladder and he twisted his knee. He was forced to undergo several operations.

Streeter sought damages for injuries incurred as a result of defendants’ alleged violation of the Federal Employers’ Liability Act (“FELA”) and the Locomotive Inspection Act (“LIA”). Defendants moved for summary judgment on the LIA violation.

Issue: Whether the Court will (1) find the defendants in violation of LIA and/or FELA and, (2) whether the Court will grant the defendants summary judgment.

Held: The Court first looked at the pleadings, depositions, interrogatories and admissions to determine if there was a genuine issue as to any material fact. All inferences were drawn in the light most favorable to Streeter.

This Court liberally construed their interpretation of LIA. The purpose of LIA is to protect employees by requiring work equipment to be safe and in its proper condition. Thus, the Court held that when the locomotive was on fire, it was not in proper condition and safe to operate. Thus, the injuries Streeter sustained while trying to put out the fire were related to its improper and unsafe condition. Streeter successfully argued that there was a LIA violation.

Further, the Court held that because there was proof of a LIA violation that was sufficient to prove negligence under the FELA.

Therefore, the Court stated that the defendants’ argument failed. There was no question that a fire in a locomotive made it unsafe, and summary judgment was not granted.

Comments:

The LIA allows a railroad to use a locomotive only when it and its parts (1) are in proper condition and, (2) safe to operate without unnecessary danger of personal injury. Thus, the LIA is violated whenever a railroad uses a locomotive that is not in proper condition and safe to operate.

The difference between the FELA and LIA is extremely important. The FELA compensates railroad workers who are injured as a result of employer negligence. The LIA imposes on railroad carriers the duty to provide their employees with safe equipment. Most notably, the LIA does not create a private right of action for injured employees.

The United States Supreme Court has construed the LIA as an amendment to the FELA, so that proof of a LIA violation is sufficient to prove negligence as a matter of law under the FELA.

On April 25, 2006, the plaintiff alleged he sustained a back injury when he slipped and fell on mainline ballast while walking in between the No. 6 and 7 switches in CSX’s Sibert Yard in Mobile, Alabama. Ballast is a gravel rock used in the railroad industry. Mainline ballast is larger and is used to support railroad tracks.

The plaintiff alleged that CSX breached its duties under the Federal Employer’s Liability Act (“FELA”) by putting larger, mainline ballast in the yard, rather than the smaller, yard ballast which would provide a safer walking surface.

CSX’s submitted 21 motions in limine, while the plaintiff submitted 24 motions. A number of motions were granted on each side, as the other party did not oppose them.

Defendant’s motions in limine:1. Motion to exclude testimony that CSX could have provided a safer or easier workplace.

The Court found that evidence regarding safety concerns about the mainline ballast being used was relevant. The Court will resolve any confusion as to the duty FELA requires of an employer in a jury instruction. Defendant’s motion is denied.

2. Motion to exclude testimony about plaintiff’s marriage, family, and loss of enjoyment in life.

The Court found that evidence of the above was relevant to plaintiff’s claim for lost enjoyment in his life. Defendant’s motion is denied.

3. Motion to exclude any lay opinions on the effect of the accident on the plaintiff.

Federal Rules of Evidence 701 allows a lay witness to testify in the form of opinions or inferences which are (1) rationally based on the perception of the witness, (2) helpful to an understanding of the witness’ testimony or a factual determination, and (3) not based on scientific, technical, or specialized knowledge within the scope of Fed. R. Evid. 702.

The Court therefore found that defendant’s motion must be denied. Such testimony from lay people may be helpful to the jury in deciding how the accident affected the plaintiff.

4. Motion to exclude evidence of prior accidents or complaints at the railyard.

Evidence of the accidents at issue, regardless of whether the factual circumstances were closely similar, may be introduced to show notice. The Court denied defendant’s motion.

5. Motion to exclude evidence of subsequent incidents or accidents and complaints.

The Court found this motion overly broad. Because the defendants had not specified any subsequent accidents to be excluded, the Court denied this motion.

Plaintiff’s motions in limine:1. Motion to disallow any surveillance reports since CSX had not disclosed any in the litigation process.

The Court noted that a defendant’s surveillance video of a personal injury plaintiff may be important and admissible. However, the discovery deadline had not passed; therefore, the defendant could still bring forth video surveillance at trial. The Court denied the plaintiff’s motion.

2. Motion to exclude any reference to any and all personal injury claims plaintiff made against defendant during the course of his employment.

The Court found that evidence of the plaintiff’s prior injuries, including a back injury, was relevant to the cause of his current back injury. The evidence of prior injury claims was more probative than prejudicial. The Court denied the plaintiff’s motion.

3. Motion to exclude evidence of plaintiff’s Social Security earnings.

The Court did not see how Social Security earnings were relevant to the issues in the case. The Court granted the plaintiff’s motion.

Background: The appellant, Mark G. Maynard, filed suit against the appellee, Norfolk Southern Railway. Maynard alleged that as a direct and proximate result of Norfolk’s violations of the FELA and the Locomotive Boiler Inspection Act (“LBIA”), he developed pulmonary problems due to exposures to various toxic substances, including asbestos.

Maynard’s complaint did not state when he learned of these pulmonary problems or first linked them to his employment with Norfolk.

Norfolk filed an answer in which it asserted several affirmative defenses, including statute of limitations and failure to state a claim upon which relief can be granted. Norfolk filed a motion to dismiss, arguing that Maynard failed to state a claim upon which relief could be granted because his claims were barred by the FELA’s three year statute of limitations. Further, Norfolk contended that the limitations period applied to Maynard’s LIBA claims because lawsuits under that act are maintained under the FELA.

According to Norfolk, Maynard filed suit against it on December 18, 2003, but then dismissed the action by an agreed order. Therefore, Norfolk contended that the statute of limitations began to run on December 18, 2003, when Maynard dismissed the action.

The trial court found that Maynard’s claim was barred by the FELA’s statute of limitations and that there was no legal or equitable basis to circumvent the expired limitations. After the court granted Norfolk’s motion to dismiss, Maynard filed this appeal.

Issue: Maynard assigned the following errors for this Court to review:(1) The lower court erred in holding there was no legal basis to circumvent the statute of limitations period.(2) The lower court erred in holding there was no equitable basis to circumvent the statute of limitations period.

Held:First assignment of error:In his first assignment of error, Maynard contended that the trial court improperly considered evidence outside the pleadings when it ruled on Norfolk’s Civ.R. 12(C) motion. However, a party asserting error must call it to the court’s attention at the time the error could have been corrected or avoided.

Because Maynard failed to object to the evidence Norfolk attached to its Civ.R. 12(C) motion, he forfeited the right to appeal any error in the trial court’s consideration of this evidence to conclude that Maynard filed his claims outside the FELA’s limitations period. Therefore, this Court overruled Maynard’s first assignment of error.

Second assignment of error:Maynard contended in his second assignment of error that the trial court should have tolled the statute of limitations on equitable grounds because (1) he promptly filed the other action; (2) Norfolk knew of that action and defended against it, so it would not be prejudiced by tolling; and (3) without tolling, Maynard would lose the right to pursue his claims, so he would suffer great prejudice.

However, Maynard failed to make his argument in the trial court. Because Maynard failed to make an equitable tolling argument in the trial court, he failed to properly preserve the argument for appellate review and forfeited the right to raise the issue on appeal. Therefore, this Court overruled Maynard’s second assignment of error.

Comments:

Equitable tolling is a part of tort law, which states that a statute of limitations shall not bar a claim in case where the plaintiff, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period.

For example, when pursuing one of several legal remedies, the statute of limitations on the remedies not being pursued will be equitably tolled if the plaintiff can show:· Timely notice to the adverse party is given within the applicable statute of limitations of filing first claim· Lack of prejudice to the defendant· Reasonable good faith conduct on the part of the plaintiff.

Background: The plaintiff, Justin R. Belisle, brought this action pursuant to the Federal Employers’ Liability Act (“FELA”). He claimed that the defendant, BNSF, negligently failed in a number of ways to furnish and provide him with a reasonably safe place to work, reasonably safe methods for work, reasonably safe conditions for work, and reasonably safe appliances for work.

On March 3, 2007, Belisle was employed by BNSF as a brakeman for a train that was preparing to depart its Newton, Kansas yard. Belisle was assigned the task of preparing the end of the train for departure, which included the installation, arming, and testing of a turbine powered end-of-train device (“ETD”), which attached to the last car on the train.

To test this particular ETD’s ability to detect and report a simulated emergency to the engineer, Belisle had to let out the bottled air in the last one or two cars of the train. To do this required Belisle to walk from the end of the train to where the last couple of cars connected to the rest of the train.

Belisle and other crew members were notified by their supervisor that an eastbound train would be approaching the area they were working. The trains were required to travel no more than 50 miles per hour, with a clearance of 58 inches between tracks.

Belisle contended that the assistant train master informed the crew that the approaching train would be held while he finished his work. However, a train approached and passed by Belisle as he was working and struck him. Belisle suffered extensive injuries.

BNSF argued that the Federal Railroad Safety Act (“FRSA”) and the regulations under the Federal Railroad Administration (“FRA”) supersede and preclude a number of Belisle’s negligence claims as set forth in his complaint. They moved for summary judgment.

Belisle countered by asserting that BNSF had failed to grasp the essence of his claims. Belisle argued that BNSF failed to provide him with a safe workplace, and they failed to inform him there would be train traffic coming past his work area. Belisle contended his claims under the FELA were not in conflict with the FRSA and summary judgment was unwarranted.

Issue: Whether the Court will grant summary judgment in favor of BNSF.

Held:The section of the FRSA to which BNSF refers set the maximum allowable speed limit for passenger and freight trains for each class of track on which a train may operate. Belisle alleged that BNSF negligently failed to take appropriate steps to prevent Belisle from being struck by a train. BNS’s desire to have the Court limit or control how Belisle presented his evidence should be addressed through a motion in limine prior to trial. The Court noted that summary judgment was improper and not the appropriate method.

BNSF argued that the Court should dismiss Belisle’s claims to the extent they were premised upon unsafe or improper ballast and footing alongside the tracks, as claims are precluded by 49 C.F.R. § 213.103. BNSF suggested that although Belisle had not specifically alleged that it was negligence because of unsafe footing or ballast, Belisle’s proffered experts have suggested that the mainline ballast upon which Belisle was working may have inhibited his ability to avoid the accident. This Court did not find that any of Belisle’s claims implied negligence on BNSF based on unsafe or improper footing or ballast so as to be precluded by 49 C.F.R. § 213.103. Therefore, this Court denied summary judgment.

Comments:

The best way for the Court to know whether or not a party has correctly asserted a statute is to look directly at the statute’s language.

On Monday, June 1st, the United States Supreme Court decided a case styled CSX Transportation, Inc. v Thurston Hensley 2009 WL 1506680 (U.S. June 1, 2009)). This case demonstrated the conservativeness of the Supreme Court, and their determination to exclude injured workers from recovering.

The Supreme Court relied heavily upon a previously decided case, i.e., Norfolk & Western R. Co. v Ayers (538 U.S. 135). Ayers held that a plaintiff may recover for fear of cancer if he proves his fear is ‘genuine and serious’. Once the plaintiff has provided proof of their apprehension of developing lung cancer in the future, the law will provide compensation for those damages.

At issue in the Hensley case was whether it was proper for the trial court to deny CSX its requested juror instructions. CSX requested the following instruction to be part of the charge:

Charge One stated the basic requirements to obtain damages under Ayers. Plaintiff is also alleging that he suffers from a compensable fear of cancer. In order to recover, Plaintiff must demonstrate that the fear is genuine and serious.”

Hensley first sued CSX in Tennessee state court. At the close of the trial, CSX requested an instruction that Hensley needed to have shown his fear of getting cancer was genuine and serious. The trial court refused to allow the instruction. The Tennessee Court of Appeals affirmed, stating that they saw no purpose in instructing the jurors. If the jurors did not believe the plaintiff was genuine and serious in his fears, then little to no damages would be awarded to him.

The Hensley court held the ruling of the Tennessee Court of Appeals and the refusal of the trial court to give the juror instructions were clear error. In Ayers, the Court expressly recognized that several “verdict control devices” were available to the trial court when a FELA plaintiff sought fear-of-cancer damages. One of the verdict control devices included that on a defendant's request, each plaintiff must prove any alleged fear to be genuine and serious. In Hensley, the trial court erred when it refused CSX’s request for a juror instruction on the genuine-and-serious standard of Hensley’s fear of cancer claim.

The Hensley Court held that instructing the jury on fear of cancer damages would have been worthwhile. Given the fact that the cancer claim could have the potential to “evoke raw emotions” among the jurors made the need for a juror instruction on the legal standard even more vital. The Hensley Court somehow felt the need to bring up the numerous asbestos cases pending as a way of justifying the estimation of damages for plaintiffs. Their choice to bring up the cases was irrelevant and unnecessary.

An interesting aspect to this case is found in the dissent. Justice Stevens, who had voted to affirm the Supreme Court decision in Ayers, displayed his contempt for the decision in this case. He stated that the new ruling authorized a fresh review of the jury’s damages award. Yet, as a matter of practicality, he noted that the jury would only award the amount of damages they felt was necessary. Justice Stevens further pointed out that CSX did not attack the $5 million dollar award as excessive. In that light, he further demonstrated that CSX did not request the trial court to ask the jury to award damages for each element of recovery. Had CSX done this, and the trial court had complied, then CSX’s challenge would only have gone to the amount awarded to the ‘fear of cancer’ amount and the entire verdict would not have had to have been thrown out.

The Hensley Court’s decision to reverse and remand the case rests on the language in footnote 19 of the Ayers opinion. The footnote states:

“In their prediction that adhering to the line drawn in Gottshall and Metro-North will, in this setting, bankrupt defendants, the dissents largely disregard, inter alia, the verdict control devices available to the trial court. These include, on a defendant's request, a charge that each plaintiff must prove any alleged fear to be genuine and serious, review of the evidence on damages for sufficiency, and particularized verdict forms.” Id., at 159, n. 19

The Hensley Court broadly interpreted the footnote, finding that anytime a defendant demanded an instruction, it must be given when involving fear of cancer.

In contrast, Justice Stevens held that on the footnote’s face it merely points out that a defendant has the right to request a genuine-and-serious instruction, and if requested, the instruction is available to the trial court. It does not suggest that all instructions should be granted.

The Hensley majority opinion deviated from Ayersstare decisis. The Court’s opinion, more than anything, will generate confusion regarding the Ayers case. The Ayers case had already suffered multiple interpretations by the courts. Given the opportunity to provide clarity to the holding of Ayers, the Hensley Court failed to meet this objective. In their rush to reverse the Tennessee Court of Appeals, they failed to correctly interpret Ayers and eliminate the confusion that plagued many courts.

The Hensley opinion leaves the reader wondering why the Supreme Court failed to recognize the rights of workers who labor across America. This conservative approach greatly diminishes a worker’s ability to recover damages.

Finally, since FELA law generally governs Jones Act rulings, this ruling would also apply to all the asbestosis and other mass tort maritime claims that currently exist.

Background:Plaintiff, Herald R. Gunder (“Gunder”) filed suit against the defendants under the Federal Employees’ Liability Act (“FELA”), the Federal Safety Appliance Act, and the Locomotive Inspection Act. Gunder alleges he was exposed to excessive and cumulative trauma to his arms and shoulders while performing his work. Gunder filed this action in the Eastern District of Pennsylvania.The Defendants have moved to transfer venue to the Northern District of Ohio, Toledo Division pursuant to 28 U.S.C. §1404(a).Issue: Will the court grant the defendants’ Motion to Transfer Venue?

Held:Under §1404(a), a district court may transfer any civil action to any other district or division where it may have been brought for the convenience of the parties and witnesses. Furthermore, under FELA’s venue provision 45 U.S.C. §56, such an action “may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action”.

Plaintiff’s choice of forum has been given great deference to the plaintiff’s choice of forum. In cases brought under FELA, the plaintiff’s choice of forum has been called a “substantial right” and requires notable deference notwithstanding plaintiff’s residence or the location of the underlying cause of action.

Thus, under claims filed by plaintiffs under FELA, the defendant must demonstrate a clear and convenience, definitely and unequivocally, to be granted transfer. The court will balance private and public factors.

The three most important private factors are, convenience of the parties, the witnesses, and whether the claim arose elsewhere. The Court found all three of these factors are in favor of granting the transfer. The plaintiff’s employment for the defendant is based in Toledo, Ohio all the witnesses reside in or around the Northern District of Ohio. Also, the location where the claim arose favors granting transfer. The plaintiff has admitted that he has never worked in the Pennsylvania area.

The public factors considered by this Court are, local interest in deciding local controversies, practical considerations making the trial easier, and court congestion.

The plaintiff worked in the Northern District of Ohio so the district had a clear interest in the case. The proposed transfer district has a direct tie to the plaintiff’s injury. The most persuasive consideration making the trial easier according to this Court, is that six of the potential witnesses are located in, or immediately outside, the proposed transfer district. Therefore, transfer would make the trial easier.

Finally, the Pennsylvania District has nearly four times as many pending civil cases and fewer than twice as many judges than the Northern District of Ohio.Despite the substantial weight of the venue in which the plaintiff files under FELA, this Court found transfer to be appropriate in this action under FELA. \

Comment:

Typically, the location of cause of action and home forum of the plaintiff controls a §1404 transfer motion. If the location of the injury did not occur in the district in which the plaintiff filed and the plaintiff does not live in the forum, then transfer will likely be found appropriate. However, under actions filed pursuant to FELA, the court will give notable deference notwithstanding the plaintiff’s residence or the location of the underlying cause of action. Given this deference, the defendant has the burden to show that based upon public and private factors, transfer is appropriate.

Here the defendant employer was able to clearly show that the private and public factors weighed in favor of transferring the case to the Northern District of Ohio, Toledo Division.

Background:Third Party Plaintiff, BNSF Railway Company (“BNSF”), moved to exclude in limine all of Plaintiff’s evidence regarding future lost wages for failure to list, in its witness and exhibit list, any evidence that would assist a jury in reducing future lost wages to present value.

Issue: Which party bears the burden of producing evidence to assist the jury in reducing any award of future lost wages to present value in a case arising under the Federal Employer Liability Act (“Act”).

Held:Under a FELA action, a plaintiff may recover future lost wages, meaning he is entitled to the difference between what he was able to earn prior to his injury and what he earned or could have earned thereafter. Moreover, an award for damages under FELA must be reduced to present value. BNSF argues that, in a FELA action, (1) A jury must be instructed to reduce an award of future lost wages to present value, (2) plaintiff bears the burden of producing evidence to assist the jury in making this reduction, and (3) if no evidence is presented of a discount rate or other evidence to assist the jury in making a present value calculation, the court should not permit an award for future lost wages at all.

Compton, the plaintiff, contends he need not present any expert testimony or any other evidence in order to assist the jury. ‘

This Court, after examining a divided precedent, ultimately holds that in a FELA action: (1) The Court must instruct the jury to reduce any award for future lost wages to present value. (2) In the absence of evidence from either party to assist the jury in reducing the future lost wages to present value, the court must instruct on present value and allow the jury to make the award based on its own experience.

Therefore, Plaintiff’s failure to present evidence to assist the jury in reducing a future lost wage award ot its present value will not preclude a future lost damages award in this case.

Comment:

Under FELA, both parties can submit evidence that will support what they should be paid, or in the case of a defendant, what they should pay out under recovery of lost wages.

The defendant bears the burden to produce evidence if it wishes the jury to consider a reduction of future lost earnings.

The plaintiff, if he wants the jury to consider an increase of inflation, bears the burden of producing evidence.

Defendant appeals the trial court’s denial of its motion for summary judgment on plaintiff’s, Michael Everett (“Everett”), claim for emotional damages arising out of a train derailment and collision into a building.

On March 6, 2006, Everett was employed as an engineer for Norfolk Southern, (“Norfolk”) and was moving a six-car train filled with auto parts down an incline into an auto plant. One of the employees of the auto plan misinformed Everett that the train derailment device was in the “off” position when in fact it was “on”.

Upon the direction of his supervisor, Everett moved the train forward and due to the position of the derailment device, the cars began derailing about 150 feet from the plant’s entrance. During the incident in which the train traveled about 300 feet from the point of derailment, Everett was “slightly pulled” in his seat during the incident but suffered no physical injury.

When Everett went home, he had experienced severe emotional distress from the incident, resulting in his temporary hospitalization and has been unable to return to work. Everett sued Norfolk alleging a claim for negligent infliction of mental distress.

Everett has testified during the incident he became frightened that he may die if the train did not stop. Three physicians have testified that the incident severely depressed Everett, resulting in nightmares, panic attacks, loss of weight, difficulty sleeping, an irritable disposition, and suicidal ideations.

The trial court denied Norfolk’s motion for summary judgment which has subsequently been appealed.

Under FELA, a plaintiff may pursue a cause of action for negligent infliction of mental distress based on the “zone of danger” test.

The zone of danger test limits recovery for emotional injury to those plaintiffs who (1) sustain a physical impact as a result of defendant’s negligent conduct or (2) who are placed in immediate risk of physical harm by that conduct.

Everett failed to meet the first prong, physical impact, because the contact must have a physically harmful effect on the body. A train engineer who experiences a jolt of movement of the cars in the train, like Everett, is insufficient.

However Everett did make a showing sufficient to survive second prong, immediate risk of physical harm. There is competent evidence that the derailment was a result of misinformation of a co-worker, the type of physical danger posed by railroad work FELA was intended to address. Everett personally drove the train as it derailed and it cannot be held as a matter of law he was not placed in “immediate risk of physical harm” while the train was derailing.

As a result, this Court affirmed the trial court’s denial of Norfolk’s motion for summary judgment.

Comment:

Under FELA, the plaintiff may recover for severe emotional distress if they suffer (1) physical impact that produces a harmful effect on the body or (2) if they are placed in immediate risk of physical harm by the defendant’s negligent conduct.

The fact that Everett was inside the actual train while it was derailing and that competent evidence supporting negligent conduct of a Norfolk employee was sufficient to deny Norfolk’s motion for summary judgment. Even though Everett was not physically impacted, the imminent danger he was placed in was sufficient to survive summary judgment.

Plaintiff, James D. Szekeres (“Szekeres”), sought relief under the Federal Employee Liability Act (“FELA”) and the Locomotive Inspection Act (“LIA”) for an injury incurred while attempting to relieve himself near the train tracks where he worked. Defendant, CSX Transportation (“CSX”), moved for partial summary judgment on all claims.

Szekeres regularly worked on a local CSX freight operation that runs from Cleveland, Ohio to Valley City, Ohio. During one of these trips, following stops at two CSX offices, Szekeres needed to use the restroom and claimed the restroom on the locomotive was unsanitary because of an unspecified chemical odor and dirty toilet seat. After visually inspecting the restroom, Szekeres exited the locomotive and threw a switch as part of his regular duties then turned up the embankment to privately relieve himself among the trees at the top.

Szekeres slipped while ascending the embankment and twisted his knee. Szekeres sued CSX alleging they provided a defective restroom on the locomotive and that it led to his injury. CSX moves for summary judgment on all claims.

Issue:

Whether this Court will grant defendant’s motion for summary judgment on all claims filed by the plaintiff.

Held:

Summary judgment is appropriate if the pleadings, discovery, and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.

Szekeres claims CSX violated the LIA and applicable provisions of the Code of Federal Regulations (“CFR”). The LIA imposes upon carries an absolute duty to maintain the parts and appurtenances of their locomotives in safe and proper condition. To show a violation the plaintiff must show that their employer (1) breached an absolute duty to maintain the parts and appurtenances of its locomotives in safe and proper condition; or (2) failed to comply with regulations promulgated under the Federal Railroad Administration.

Szekeres failed to include the condition of the restroom, on his hand-written statement made the day of the incident. Furthermore, Szekeres indicated no defective tool or equipment caused his injury caused his injury on an incident report completed six days later. CSX has provided inspection reports, one that was completed six days following the incident and reported no defect.

Moreover, Szekeres claims that CSX violated CFR §229.139, but his general allegations fail to establish the existence of a CFR violation. Accordingly, this Court granted CSX’s motion for summary judgment on Szekeres LIA claim.

Finally, this Court held that Szekeres failed to establish a legitimate FELA claim. This Court held that CSX received no notice about the defective condition relating to the muddy walkway. Szekeres ultimately failed to demonstrate CSX was on actual or constructive notice of the walkway and thus, failed to raise genuine issues of material fact regarding the duty and foreseeability elements under his negligence claim under FELA.

Comment:

Under FELA, a plaintiff must prove (1) he was injured within the scope of his employment (2) his employment was in furtherance of CSX’s interstate transportation business, and (3) CSX was negligent in its maintenance of the walkway; and (4) CSX’snegligence played some part in causing the injury for which the plaintiff seeks compensation.

Essential to a FELA claim is that the employer have some kind of actual or constructive notice. Szekeres failed to introduce evidence that established CSX had any kind of notice of the muddy walkway, the defective condition Szekeres alleges.